Citation Nr: 0202517
Decision Date: 03/19/02 Archive Date: 03/25/02
DOCKET NO. 97-26 434 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an increase in a 20 percent rating for
degenerative arthritis of the hands.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The veteran had active service from March 1940 to November
1945 and from September 1950 to July 1965.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a January 1997 RO rating decision
which denied an increase in a 20 percent rating for the
veteran's service-connected degenerative arthritis of the
hands. The veteran is rated incompetent of VA benefits
purposes; his wife is his fiduciary and the appellant in the
instant case. The appellant requested a Travel Board hearing
but withdrew such request in May 2000. A February 2002
motion to advance the case on the Board's docket was granted
by the Board in March 2002.
In a February 2002 written presentation, the appellant's
representative appears to raise the issue of service
connection for rheumatoid or other systemic arthritis of
multiple joints. Such issue is not on appeal and is referred
to the RO for appropriate action.
FINDINGS OF FACT
The veteran's service-connected degenerative arthritis of the
hands is manifested by X-ray evidence of arthritis,
complaints of pain, and at most minimal limitation of motion
of the fingers from this condition. Most of the functional
impairment of his hands, including severe limitation of
motion of the fingers, is due to non-service-connected
conditions including residuals of a cervical spine injury
with upper extremity paresis.
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent for
degenerative arthritis of the hands have not been met. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic
Code 5003 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Army from March 1940
to November 1945 and from September 1950 to July 1965. His
service medical records indicate that he was treated in
January 1955 for cellulitis of the right little finger
following a deep laceration. A February 1955 hospital record
notes a final diagnosis of cellulitis without lymphangitis of
the distal phalanx of the little finger of the right hand. A
March 1959 treatment entry notes that the veteran gave a
history of sustaining an injury to the right long finger the
previous day while using a pair of pliers. The examiner
noted that there was mild swelling and tenderness of the
distal phalanx of the right long finger without erythema or
evidence of infection. It was noted that the veteran had
excessive extension of the distal interphalangeal joint and
partial residual flexion deformity suggestive of an old
Boutonniere deformity. The impression was contusion of the
distal phalanx of the right long finger. An April 1960
record notes that the veteran had uniform diffuse swelling of
the distal phalangeal joints of all fingers. The impression
was arthritic changes. On a medical history form at the time
of the March 1965 service retirement examination, the veteran
gave a history which included that the right hand middle
finger was deformed from the settlement of arthritis in that
joint. The March 1965 objective examination noted the upper
extremities were normal.
The veteran underwent a VA general medical examination in
April 1971. He had complaints including generalized joint
pain and an inability to make a fist with the right hand as
well as deformities of the joints. The examiner reported
that there were generalized deformities of the joints of the
fingers of both hands with some deviation. There was also
flexion limitation of the finger joints. The diagnoses
included generalized degenerative arthritis.
The veteran underwent a VA orthopedic examination in July
1971. He complained of persistent pain in both hands
associated at times with swelling and localized heat. The
examiner indicated that there were bilateral swan-like
deformities (hyperextension of the proximal interphalangeal
joints) and flexion of the distal interphalangeal joints of
the 2nd, 3rd, and 4th fingers. There was no local temperature,
redness, or swelling. There were bony deformities at the
distal interphalangeal joints. The clinical diagnosis was
degenerative arthritis of the fingers of both hands. X-rays
of the hands noted that there were marked degenerative
changes in the interphalangeal and distal interphalangeal
joints, bilaterally; there was also generalized osteoporosis
in all the phalanges; and the impression was degenerative
joint disease of the interphalangeal as well as the distal
interphalangeal joints, bilaterally.
In September 1971, service connection was granted for
degenerative arthritis of the hands. A 20 percent rating was
assigned and has remained in effect.
Medical records show that in June 1973 the veteran fell and
sustained head and neck injuries, with damage to the cervical
spine, resulting in partial quadriplegia and other residuals.
Extensive treatment and rehabilitation followed, although the
veteran had severe residual impairment of his upper and lower
extremities. The records indicate that at times he could
ambulate with crutches and at times had to use a wheelchair.
He reportedly needed an attendant to assist him due to the
spinal cord injury residuals. The medical records from this
time also mention he had arthritis of the hands and spine as
well as arteriosclerotic heart disease.
In February 1976, the RO granted the veteran a permanent and
total disability rating for non-service-connected pension
purposes, as well as aid and attendance benefits, due to
residuals of the cervical spine injury.
Ongoing medical records dated to the 1990s primarily pertain
to residuals of the cervical spine injury with quadriparesis.
Other conditions noted included generalized arthritis,
cardiovascular disease, and prostate cancer. An October 1995
VA examination noted severe vascular dementia. The examiner
noted that the veteran was not competent to handle VA funds.
In February 1996, the veteran was found incompetent for the
purpose of handling VA benefits, and his wife was named as
his fiduciary.
In April 1996, the current claim was submitted for an
increased rating for service-connected degenerative arthritis
of the hands.
The veteran underwent a VA hand, thumb, and fingers
examination in August 1997. The VA doctor made no mention of
the history of a cervical spine injury, and there was no
mention that the claims folder was reviewed. The veteran
referred to severe pain of both hands and fingers with severe
limitation of motion and an inability to close the hands or
open them. The examiner reported that there were anatomical
defects with severe swan neck as seen in arthritic
deformities. The veteran lacked 1 inch to touch with the tip
of both thumbs and the tip of both index fingers. He lacked
2 inches to touch with the tip of both thumbs and the tip of
the both middle fingers. He lacked 3 inches to touch with
the tip of both thumbs and the tip of both ring fingers and
lacked 4 inches to touch with the tip of both thumbs and the
tip of both little fingers. He lacked 5 inches to touch with
the tip of all fingers to the median transverse fold of the
palm of both hands. The doctor stated that the above were in
active and passive movements. The veteran had severe
weakness of strength of both hand grip muscles with a muscle
strength of 0/5. There was also severe muscle atrophy of the
intrinsic muscles of both hands and severe crepitation of
both wrists. There was severe fusiform swelling of all
proximal interphalangeal and distal interphalangeal joints on
all fingers of both hands. The veteran had considerable
atrophy of the muscles of the thenar eminences. The examiner
noted that the thumb was in the plane of the hand (ape hand),
pronation was incomplete and defective, and there was absence
of flexion of the index finger and feeble flexion of the
middle finger. The veteran could not make a fist. The
middle fingers remained extended. The veteran could not flex
the distal phalanx of the thumb as there was a defective
opposition and abduction of the thumb in the area of a right
angle (90 degrees) to the palm, with flexion of the wrist
weakened with trophic disturbances. The veteran had a
Griffin Claw deformity due to flexion contracture of the
right hand ring and little fingers. Atrophy was much marked
in the dorsal interspace and the thenar and hypothenar
eminences with loss of extension of the ring and little
fingers. The veteran could not spread the fingers on reverse
and could not adduct the thumb. Wrist flexion was weakened.
The diagnosis was degenerative arthritis of the right and
left hands.
In March 2000, the RO rating board requested another VA
examination and opinion, noting that the 1997 examination
apparently did not review the claims folder and did not
account for the effects of the non-service-connected cervical
spine injury residuals.
In April 2000, X-rays of the hands for another VA examination
were performed. These noted that both of the veteran's hands
showed diffuse osteopenia and swelling of the hands. There
was ankylosis of the distal phalangeal joints of the 2nd
through the 3rd fingers of the right hand and in the 2nd
through the 5th fingers on the left with contraction flexion
deformity of the 5th finger with partial destruction and
remodeling of the proximal phalangophalangeal joint observed.
There was also narrowing of several phalangophalangeal
joints, particularly the 3rd and 4th, with seagull appearance
of the 1st carpometacarpal joints bilaterally. It was
further indicated that there were mild subluxations of the
1st metacarpophalangeal joints bilateral. The findings were
reported to be consistent with advanced degenerative joint
disease. The impression was severe degenerative joint
disease of the hands, swelling of the hands, and contraction
flexion deformity of the right 5th finger at the proximal
phalangophalangeal joint.
In April 2000, another VA examination was performed by the
same doctor who performed the 1997 examination. The doctor
noted that the veteran's claims file and service medical
records had been reviewed carefully. It was noted that the
physical examination of the hands was unchanged since the
last examination in 1997. The doctor commented that there
was evidence of worsening of the arthritis condition of the
hands compared with the first VA examination in 1971. The
examiner noted objective findings on physical examinations in
1971 and 1997 of swan neck deformities and bony deformities.
The examiner stated that as seen by the X-rays performed in
April 2000, the veteran had severe degenerative joint disease
of the hands associated with soft tissue swelling which
corresponded to the service-connected hand disability. The
doctor stated that in terms of the loss of use of the upper
extremities and the rest of the objective findings on the
physical examination of 1997, such were related to the non-
service-connected spinal cord injury sustained in 1973.
VA medical records from 1995 to 2000 primarily refer to
treatment for multiple ailments unrelated to service-
connected degenerative arthritis of the hands.
II. Analysis
The veteran claims an increase in the 20 percent rating
assigned for his service-connected degenerative arthritis of
the hands.
Through correspondence, the rating decision, the statement of
the case, and the supplemental statement of the case, the
veteran has been informed of the evidence necessary to
substantiate his claim. Pertinent medical records have been
obtained, and VA examinations have been provided. The Board
finds that the notice and duty to assist provisions of the
Veterans Claims Assistance Act of 2000, and the related VA
regulation, have been satisfied. 38 U.S.C.A. §§ 5103, 5103A
(West Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. § 3.159).
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities. Separate
diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Degenerative arthritis established by X-ray findings will
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. When, however, the limitation of motion of the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added under diagnostic code 5003. In the absence of
limitation of motion, a 10 percent rating will be assigned
where there is X-ray evidence of involvement of two or more
major joints or two or more minor joint groups, and a 20
percent rating will be assigned where there is X-ray evidence
of involvement of two or more major joints or two or more
minor joint groups with occasional incapacitating
exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003.
For purposes of rating arthritis, groups of minor joints
include multiple involvements of the interphalangeal,
metacarpal, and carpal joints of the upper extremities.
38 C.F.R. § 4.45(f).
In classifying the severity of ankylosis and limitation of
motion of single digits and combinations of digits the
following rules are observed: (1) Ankylosis of both the
metacarpophalangeal and proximal interphalangeal joints, with
either joint in extension or in extreme flexion, will be
rated as amputation. (2) Ankylosis of both the
metacarpophalangeal and proximal interphalangeal joints, even
though each is individually in favorable position, will be
rated as unfavorable ankylosis. (3) With only one joint of a
digit ankylosed or limited in its motion, the determination
will be made on the basis of whether motion is possible to
within 2 inches (5.1 cms) of the median transverse fold of
the palm; when so possible, the rating will be for favorable
ankylosis, otherwise, unfavorable. (4) With the thumb, the
carpometacarpal joint is to be regarded as comparable tot he
metacarpophalangeal joint of other digits. See notes
preceding 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5219
(unfavorable ankylosis of multiple fingers) and Diagnostic
Codes 5220-5223 (favorable ankylosis of multiple fingers).
Diagnostic Codes 5216-5219 provide ratings ranging from 20
percent to 60 percent for unfavorable ankylosis of multiple
fingers of a hand, depending on how many fingers are involved
and whether the hand is the major or minor hand. Diagnostic
Codes 5220-5223 provide ratings ranging from 10 percent to 50
percent for favorable ankylosis of multiple fingers of a
hand, depending on how many fingers are involved and whether
the hand is the major or minor hand.
Loss of use of both hands warrants a 100 percent rating. 38
C.F.R. 4.71a, Diagnostic Code 5109.
When rating the service-connected degenerative arthritis of
both hands, the entire history must be borne in mind.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran
retired from service in 1965. Medical records from 1971 show
X-ray evidence of the minor joints of both hands and
complaints of pain. Such supported no more than a 20 percent
rating under Code 5003 for arthritis of two minor joint
groups with at least minimal limitation of motion or no
limitation but with occasional incapacitating exacerbations.
There was no indication at that time of favorable or
unfavorable ankylosis of multiple fingers which would support
an overall higher rating. Soon thereafter, in 1973 the
veteran sustained a non-service-connected cervical spine
injury with residuals including paresis of the upper
extremities. Later medical records occasionally mention the
service-connected degenerative arthritis of the hands,
although the records indicate that functional impairment of
the hands from the service-connected condition has been
eclipsed by the non-service-connected spinal cord injury
residuals.
More recent evidence includes a 1997 VA examination showing
essentially no muscle strength in the hands and significant
restriction of finger motion. The same VA examiner re-
examined the veteran in 2000 (this time reviewing and
commenting on historical records), noted that physical
findings were the same as on the 1997 examination and current
X-rays of the hands showed some advancement of arthritis
compared with earlier studies. However, the doctor noted
that upper extremity loss of use and other objective findings
on the recent physical examinations were associated with the
non-service-connected spinal cord injury.
Impairment from non-service-connected conditions must be
excluded when rating a service-connected disability.
38 C.F.R. § 4.14. The medical records show that the
overwhelming functional impairment in the veteran's hands is
due to non-service-connected conditions including residuals
of a cervical spine injury with upper extremity paresis; it
is this condition which hinders the veteran's ability to move
his fingers. The service-connected degenerative arthritis of
the hands is shown by X-ray findings, complaints of pain, and
perhaps minimal limitation of motion of the fingers which
would not be compensable under a limitation of motion code.
Such supports no more than the current 20 percent rating
under Code 5003. There is no reliable medical evidence to
demonstrate that service-connected degenerative arthritis of
the hands is responsible for favorable or unfavorable
ankylosis of multiple fingers of the hands to such degree
that an overall rating in excess of 20 percent would be
warranted. Such is the case even when the effects of pain
are considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v
Brown, 8 Vet.App. 202 (1995). The historical and recent
medical evidence shows that the limitation of motion of the
fingers of the hands is fundamentally due to non-service-
connected disability, and any loss of use of the hands is
also the result of non-service-connected disability.
The preponderance of the evidence is against the claim for an
increase in the 20 percent rating for degenerative arthritis
of the hands. Thus the benefit-of-the-doubt rule does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
ORDER
An increased rating for degenerative arthritis of the hands
is denied.
L. W. TOBIN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.